Summary:

Recent climate litigation efforts are a testament to creative lawyering. This article seeks to explore some of those recent cutting-edge approaches to climate litigation.

In the absence of federal leadership in the United States to combat climate change, a number of individuals and states have recently pursued new approaches to force action through litigation. These new approaches include asserting new legal theories to creatively applying long-recognized doctrine rooted in the common law. Some applaud these novel approaches to environmentalism. Others say these suits are circumventing the legislative branch, which represents the voice of the people, by using the judiciary.

No matter your opinion, these recent climate litigation efforts are a testament to creative lawyering. This article seeks to explore some of those recent cutting-edge approaches to climate litigation.

In a case of David versus Goliath, 21 young plaintiffs have sued the federal government in federal district court in Oregon over its lack of meaningful effort in responding to the perils presented by climate change. In an unusual approach to an environmental law issue, they have brought claims grounded in the Constitution and the public trust doctrine. They allege that the government has violated their rights to life, liberty, and property. They further claim that the government has failed to protect public trust resources. The plaintiffs act as representatives of the youngest generation.

The plaintiffs point to the government’s affirmative actions causing climate change as the root of these claims. Specifically, they allege the government has knowingly caused carbon dioxide levels to rise in a way that compromises the climate system, threatening human health and welfare. They request that the court force the administration to act to fight climate change.

Although slow-moving, the underdog plaintiffs have already made major strides. Their case has survived multiple motions to end it without a trial. The case even survived a trip to the United States Supreme Court, where seven justices agreed to deny the government’s motion for a stay. Previously, Chief Justice John Roberts issued a temporary stay in early October, in an unusual action of the Supreme Court reaching into the lower courts.

There’s no way to know how many more obstacles this case will need to overcome in the future. As recently as November, 21, 2018, the U.S. District Court judge issued an order staying pretrial proceedings and certifying an interlocutory, or intermediate, appeal. In response, the plaintiffs filed a motion to reconsider. Regardless, plaintiffs continue to prepare for a 50-day trial, which, pending the judge’s decision on the plaintiffs’ motion and the interlocutory appeal, should begin in the near future. While this case rests heavily on the fine nuances of constitutional law, the youthful plaintiffs will likely introduce scientific evidence and demonstrate purposeful disregard by the federal government of the threat that climate change presents. Lawyers, activists, and the government wait with bated breath for the outcome.

Cities and states are fighting back against high carbon-emitting industries, too. New York City has previously filed suit against a number of fossil fuel companies in an attempt to hold them liable for damages to the city due to climate change. Cities in other states, such as, Oakland, California, have raised similar suits but they have not fared well. Most courts have thrown such suits out, suggesting the judicial system is not the appropriate venue for dealing with climate change. Cities’ pursuits of climate justice by the states seemed futile.

Now, however, New York is trying a new approach. Rather than seeking damages for climate change, New York filed suit against Exxon Mobil under the Martin Act in October 2018. The Martin Act is a powerful securities law, under which the Statecan bring actions to protect investors. Boiled down, the state is suing Exxon Mobil for fraud. The Martin Act is fairly unique, as most states do not have such powerful laws. As such, most states likely will not be able to follow in New York’s footsteps, if they are successful.

In its case against Exxon Mobil, the New York State Office of the Attorney General must show that Exxon Mobil misrepresented or withheld material information about climate change from its investors. The state has used its authority under the Martin Act to explore company documents relating to its scientific research into climate change and business decisions it made due to climate change. The attorney general says it has found evidence that Exxon Mobil kept two sets of numbers for calculating the cost of future greenhouse gas regulations. The state alleges that these numbers, one internal and the other external, have given investors the false impression that the company was on better footing, financially, than it actually was.

The state requests injunctive relief, a review of Exxon Mobil’s failure to apply the appropriate climate change cost and the resulting financial consequences, damages, repayment of the amount of money obtained in connection with the company’s violations, and restitution for investors. While this case is very young and still in its early stages, it represents an unusual approach to holding corporations responsible for climate change.

States and municipalities are not just relying on statutes to try to force action to responsive to climate change. A number of them are also turning to tort law, specifically state-based common law nuisance, which is a common mechanism for individuals to address environmental harms. Now, this long-established common law remedy is being asserted against fossil fuel companies, along with other well-established common law remedies.

In July 2018, for example, Rhode Island filed suit against 21 fossil fuel companies, arguing that those companies should be held responsible for climate change impacts the state has experienced and will continue to experience. The state alleges harms such as extreme precipitation, drought, increased ocean acidity, severe flooding, and sea-level rise.

The state asserted claims of public nuisance, strict liability for design defects, negligent design defect, negligent failure to warn, trespass, and impairment of public trust resources, in addition to violations of the Rhode Island Environmental Rights Act. To back up these claims, Rhode Island has provided scientific evidence, such as what percentage of carbon dioxide emissions the companies are responsible for. In addition, the state claims the companies concealed the known hazards of fossil fuel products while continuing to produce, promote, and market those products, causing injury. The state seeks compensatory damages, injunctions, punitive damages, and repayment of profits.

This case comes in the wake of other state nuisance suits being dismissed by courts. For example, a federal judge dismissed nuisance claims against fossil fuel companies in California, mainly citing that it was not the judiciary’s job to create environmental policy. However, the Rhode Island Office of the Attorney General maintains that its case is viable, as it asserts multiple state law claims. If Rhode Island is successful, it may open the door to common law strategies for shaping environmental policy to specifically address climate change.

Conclusion

Overall, while a new approach, litigators and activists have dreamed up creative ways to combat climate change. From constitutional-based claims to nuisance, new lawsuits are challenging those responsible, at least in part, for climate change. Although there are no major victories yet, environmental advocates eagerly wait in the wings.

Dayna Smith JD’20 graduated from the University of Notre Dame in 2014 with a bachelor’s degree in biology. During her time at Notre Dame, she researched heavy metal contaminants in Lake Michigan turtles. Dayna also holds a master’s degree in biology from Western Illinois University. At Vermont Law School, Dayna focuses her studies on environmental law and is interested in environmental litigation. As a staff editor of the Vermont Journal of Environmental Law, Dayna is researching potential legal challenges to single-use plastic straw bans. Besides VJEL and coursework, Dayna is a teaching assistant for 1L Civil Procedure classes and is the secretary of SCORE, where she helps coordinate a buddy program with the local elementary school.

Professor Mark Latham joined the Vermont Law School faculty in 2005. He specializes in a range of environmental issues that arise in corporate and commercial real estate transactions and brownfields redevelopment. His research focus includes the intersection of business and environmental law, as well as issues under the federal Clean Water Act.
phone: 802-831-1226
email: mlatham@vermontlaw.edu